The Teachers Service Commission is in a dilemma over an increasing number of tutors alleging they are unfairly being retired before their time.
The situation has been compounded by the fact that the TSC abides by laws and regulations governing how and when employees should retire and how changes to the set retirement age can be effected should such a need arise.
These laws have made it difficult for teachers to adjust their retirement age at will, especially when they present recently acquired birth certificates or national identity cards as evidence of age.
The commission has insisted on relying only on documents teachers presented at the time of seeking employment to determine their retirement age and wants this position upheld by the Employment and Labour Relations Court (ELRC). It says those are the only reliable documents which were given when the employee was brutally honest.
Several such disputes are pending determination in various courts across the country. Most of the complaints relating to the matter have also been resolved internally by the commission.
For instance, Mr Daniel Wambugu, a headteacher at the time he was retired, is seeking a declaration that his retirement date is August 31, 2017 and not July 1, 2017 as suggested by the TSC.
He also wants to be awarded damages for wrongful retirement.
On April 6 last year, Mr Wambugu received a letter from the TSC indicating that he was supposed to retire on July 1, 2017, after having attained the age for compulsory retirement of 60 years.
He was, therefore, advised to submit certain documents to facilitate processing of his pension claims.
He immediately went and explained to the TSC personnel that his retirement date would be August 31, 2017.
However, after several visits, Mr Wambugu was surprised that the TSC refused to adjust his retirement date, in spite of him presenting all his payslips, which had his retirement age captured on them, to prove otherwise. He, therefore, rushed to court, arguing that the TSC wanted to unfairly retire him without following due process.
His grievance is also worsened by the fact that, should the TSC rely on its July 1, 2017 retirement date, then he is likely to miss out on the collective bargaining agreement (CBA) signed between the Kenya National Union of Teachers (Knut) and the TSC, which come into force that day.
“Should TSC retire me before the date that I have always known, I will lose all my increment dues under the CBA that was entered into by Knut and TSC,” Mr Wambugu argued in court papers.
But the TSC, through its lawyer Ms Patricia Naeku, asserts that in his application for employment dated November 14, 1980 Mr Wambugu voluntarily declared his date of birth as 1957. The TSC did not doubt it and, accordingly, accepted it as his true date of birth for employment purposes.
When an employee is hired, it is their responsibility to declare the accurate date of birth. And, in the absence of the declaration, as a matter of practice, the TSC adopted July 1 as Mr Wambugu’s date of retirement.
“TSC reiterates that, in the course of his employment, he maintained in official records that he was born in 1957 as declared in his Application for Registration and at no time did he ever change or mention any other date of birth apart from 1957,” said Ms Naeku for TSC in court papers.
Mr Wambugu had provided a birth certificate to support his plea to have his records adjusted but the TSC officers declined.
Government Regulations communicated through Circular No. 2 of November 15, 1982 say an employee’s official date of birth is the one declared by him or her on application for employment and not that shown on the national identity card or any other document.
Regulation 11(2)(a) of the Code of Regulation of Teachers, which complements the Government Regulations, also provides that “the date of birth acceptable to the commission is the date the applicant has stated in the application form for employment”.
Regulation 11(2)(b) further states that, “where there is doubt, the commission shall require proof of the date of birth, and for this purpose the commission shall accept a certified copy of the birth certificate issued under the Births and Deaths Registration Act as proof provided it was issued on or before November 15, 1982.”
Citing the regulations, Ms Naeku therefore argued: “Accordingly, the commission could not change or interfere with Mr Wambugu’s date of birth as declared at the time of employment.”
The challenge that TSC is battling also emanates from its policy before 2014, of retiring teachers during school holidays so as not to interrupt learning, and which was done irrespective of the retirement age. Some retired earlier and others after their retirement age.
“This is how Mr Wambugu’s retirement age was indicated to be effective August 31, 2017 (two months after he attained 60 years) so as to ensure he finished the second school term and effectively handed the headship of the school during school holidays to ensure minimum disruption of learning activities. Hence the date of retirement on his pay slip,” the TSC told the court.
However, a circular from the Office of the President dated February 14, 2014 outlawed retention of public servants beyond the mandatory retirement age of 60. The office directed that all public officers should exit service upon attainment of 60 years due to the public wage bill sustainability.
“This led to the ‘amendment’ of the initial dates of retirement indicated on Mr Wambugu’s payslip to the precise date as per the employment records,” said Ms Naeku.
The TSC says Mr Wambugu cannot also benefit from the CBA given the effective date of the agreement was July 1, 2017, when he had already retired from service.
Separately, Ms Janerose Njeri, who secured temporary orders stopping the TSC from retiring her, was employed in 1983 and has taught in various schools, rising to the position of headteacher.
She received a letter dated April 14, 2016 from the TSC requiring her to retire on age grounds.
“I was shocked to learn that the records held by TSC allegedly indicate that I was born on July 1, 1957. I sent my reply to TSC stating that I was born on February 24, 1960 and also provided my national ID and birth certificate, but TSC has insisted that I should retire and go home,” said Ms Njeri in court papers.
The TSC, through lawyer Sylvia Ngere, however, maintains that, while applying to be registered as a teacher on November 2, 1982, Ms Njeri declared her date of birth as 1957 and further duly certified that correctness of the information in the application form while submitting it. She subsequently applied for employment by TSC on November 3, 1982, when again she declared her birth date as 1957.
“She declared that she was born in 1957 and signed the two forms voluntarily without coercion or being under duress,” said Ms Ngere.
The TSC adds that the decision to compulsorily retire Ms Njeri was arrived at with the full knowledge of her age and backed by her declaration at the point of entry into the service, “and the same was duly and timely informed to her”.
Ms Njeri nonetheless wants the court to allow her case, saying the TSC has failed to properly assess her age. She says the TSC has discriminated against her by seeking to retire her at 57 while other teachers retire at 60, and that the commission should have used her national ID and birth certificate to ascertain her age.
“I do not know where TSC got the alleged date of July 1, 1957 from,” said Ms Njeri. “I have three years remaining before I retire. The court should restrain TSC from retiring me.”
In her response to the TSC letter retiring her, Ms Njeri had urged the employer to consider amending the records to reflect that she had three more years to serve.
“I dispute the date, July 1, 1957, stated as my birth date,” Ms Njeri stated in her letter. “I humbly request you to amend your records to give me the opportunity to serve … until my correct retirement date.”
The TSC, however, informed her that it would not be guided by her national ID card and birth certificate, which were issued in 2012 and 2014, respectively, in determining her retirement age.
“We do not adopt dates of birth shown on national IDs,” read a letter to her from the TSC in February this year. “We may adopt dates on a birth certificate only if the certificate was issued on or before 1982. Be advised that our notice stands.”
The commission has also requested the Labour Court to lift its orders allowing Ms Njeri to remain on the payroll pending the hearing and determination of her case. The TSC states that it lacks financial resources to sustain Ms Njeri on the payroll beyond her retirement age.
“The orders were granted based on irregular documents that are not used for purposes of determining the retirement age in the public service,” the TSC argued. A ruling on whether Ms Njeri will continue to enjoy the court orders to remain on the TSC payroll will be delivered on January 26, next year.